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Sunday, 28 March 2010

DPP (Cth) v D'Alessandro: child pornography sentencing principles

DPP (Cth) v D'Alessandro [2010] VSCA 60 considered the appropriate penalty for a person convicted in Victoria under the Commonwealth Criminal Code of possessing what the sentencing judge described as the "very worst" of child pornography.



The respondent had been sentenced to a total effective sentence of 2 years imprisonment, but released immediately on a recognisance. (The judgment refers at [5] to s 21B of the Crimes Act 1958, but since this doesn't exist it seems likely the Court was referring to s 20(1)(b) of the Crimes Act 1914 (Cth)). A recognisance can be likened to a suspended sentence or accountable undertaking, but is not either of those things.



(Incidentally, this is a good opportunity to draw attention to a very useful paper prepared by the CDPP, Federal Sentencing in Victoria. It has recently been updated to take into account the changes to local procedure caused by the Criminal Procedure Act 2009).



The CDPP appealed the sentence on the ground of manifest inadequacy, and the appeal was upheld. The Court of Appeal substituted a sentence of two years imprisonment to be served immediately, with a further 12 months served by way of a recognisance.



Double Jeopardy



Harper JA (Williams AJA agreeing) imposed a lesser penalty than he would have done otherwise in recognition of the repondent having stood twice to receive his sentence: R v Clarke [1996] 2 VR 520. This principle which applies in Crown appeals has been abolished by the Criminal Procedure Act 2009 (in the County Court by operation of s 259(3) and in the Court of Appeal by s 289(2)) and will not apply to appeals from sentences handed down this year.



Sentencing Principles



The Court included in the judgement [at 21] one of the dense lists of relevant sentencing principles which can be so useful when researching legal argument. I've reproduced it below, with the authorities cited inserted into the main text and hyper-linked:



Applicable sentencing principles



21 When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions.



First, that the problem of child pornography is an international one: R v Jones (1999) 108 A Crim R 50 51.



Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration: Assheton v The Queen (2002) 132 A Crim R 237.



Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it: R v C [2004] QCA 469.



Fourthly, that those who make up that market cannot escape responsibility for such exploitation: R v Gent [2005] NSWCCA 370 at 43.



Fifthly, that limited weight must be given to an offender’s prior good character: R v Gent, at 65.



Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty: R v Gent, at 99.



They include:



(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;



(b) the number of images or items of material possessed by the offender;



(c) whether the possession or importation is for the purpose of sale or further distribution;



(d) whether the offender will profit from the offence.




Last year I posted about Dr Ian Freckelton's paper on making pleas of mitigation on behalf of sex offenders. In light of the Court of Appeal's remarks in D'Alessandro his approach to this difficult task seems even more appropriate.

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